from the not-exactly-‘fuck-cheer,’-but-then-what-is? dept
Another school has learned it can’t discipline students for off-campus behavior, especially in light of the Supreme Court’s “fuck cheer” decision.
Teens do stupid things. Sometimes they do them at school and the school is free to punish them. Sometimes they do them elsewhere and that’s where the limits kick in. That’s what the Cherry Creek School District has just been informed of by the Tenth Circuit Appeals Court. Its decision [PDF] reverses the lower court’s ruling (made before the Supreme Court’s Mahanoy decision] and allows a student who told a truly tasteless joke to continue suing the district for expelling him.
The facts of the case aren’t great, at least in terms of what it says about this student’s (referred to as “C.G” in the ruling) ability to discern what is or isn’t funny.
On the evening of Friday, September 13, 2019, C.G. was off campus at a thrift store with three friends. He took a picture of his friends wearing wigs and hats, including “one hat that resembled a foreign military hat from the World War II period.” C.G. posted that picture on the social media platform Snapchat and captioned it, “Me and the boys bout [sic] to exterminate the Jews.” C.G.’s post (the photo and caption) was part of his private “story,” an online feed visible only to Snapchat users connected with C.G. on that platform.
C.G. deleted the post a few hours later and put up a new post apologizing for the “joke.” But it was too late. One of his Snapchat “friends” took a screenshot of the post and showed it to her father. Her father, for whatever reason, thought this justified getting the police involved. The police paid C.G. a visit, determined there was no threat of extermination, and went about their business.
Another parent notified the student’s school, mentioning “prior anti-Semitic activity” (but not by this student!) and claiming the post had “caused concern for many in the Jewish community.” Whether or not these claims were factual isn’t discussed here, but the school moved forward with punishing C.G. for his off-campus actions, suspending him for five days “while the school investigated.”
The investigation concluded more than two weeks later (C.G. spent the entire time suspended) and the school expelled C.G. for one year, claiming the off-campus post had violated school rules prohibiting on or off-campus behavior “that is detrimental to the welfare or safety of other pupils or school personnel.”
After being handed a loss in the district court, C.G. appealed, citing the Supreme Court’s recent decision in the “fuck cheer” case. The district didn’t change its arguments at all, claiming it did not violate C.G.’s rights by punishing him for off-campus behavior.
Defendants maintain that C.G. was lawfully disciplined for what amounts to off-campus hate speech. According to Defendants, although originating off campus, C.G.’s speech still spread to the school community, disrupted the school’s learning environment, and interfered with the rights of other students to be free from harassment and receive an education. Defendants also contend that C.G. was provided all the process that was due.
The Supreme Court’s decision has slightly altered the legal framework. And it’s altered it enough the school has nothing to stand on.
Mahanoy’s framework for assessing school regulation of off-campus speech on social media controls our analysis here. In many respects and based on the Complaint, this case is materially similar. Like B.L.’s speech, C.G.’s speech would generally receive First Amendment protection because it does not constitute a true threat, fighting words, or obscenity. Defendants argue that C.G.’s post is uniquely regulable because it is “hate speech targeting the Jewish community” and “not just a crude attempt at a joke about the Holocaust.” But offensive, controversial speech can still be protected.
Like the Supreme Court decision, C.G.’s speech occurred off-campus, did not target any specific students or school personnel, and was transmitted via C.G.’s phone to a small group of friends. Constitutional protections still apply and the school, for all of its alleged concerns, cannot bypass those protections. Nor can it unilaterally decide to step in and dispense discipline that should be handled by a parent for behavior that occurred off-campus.
The argument the Appeals Court likes least is the school’s allegation that this Snapchat post caused (or could have forseeably caused) “substantial disruption.” The district offers no evidence to support this claim.
Defendants provide the following reasons to support a reasonable forecast of substantial disruption regarding C.G.’s initial suspension: (1) that Principal Ryan Silva received emails about the post; (2) that the post had been widely circulated throughout the area’s Jewish community; and (3) that the post had scared, angered, and saddened a family who said their son was worried about having a class with C.G. After the initial suspension, Defendants stress that: (1) Principal Silva sent a message to CCHS students, parents, and staff; (2) news outlets covered the incident; (3) three more parents contacted CCHS; and (4) CCHS used one advisory period to discuss C.G.’s post and promote conversation about harmful speech.
These facts do not support a reasonable forecast of substantial disruption that would warrant dismissal of the Complaint. CCHS only provides an email chain with one family.
The court follows this up by telling the school it can’t call protected speech unprotected simply because it chose not to respect the student’s rights.
Defendants cannot claim a reasonable forecast of substantial disruption to regulate C.G.’s off-campus speech by simply invoking the words “harass” and “hate” when C.G.’s speech does not constitute harassment and its hateful nature is not regulable in this context.
The lawsuit continues. The Appeals Court affirms free speech rights still exist for students and that schools are limited in how or when they can punish off-campus speech. The Appeals Court also says it’s unlikely summoning a student to a meeting just to tell them they were being suspended meets the standards of due process, considering the student was never given the opportunity to speak on his own behalf.
There’s also an unsettled question of qualified immunity. Whether or not this right was clearly established will be discussed upon its return to the district court. It may seem open-and-shut, given that the heavily-cited Supreme Court Mahanoy decision came after the lower court’s decision, but the Appeals Court points to its own 2022 decision in Thompson v. Ragland (covered here), which dealt with the unconstitutional punishment of on-campus speech. If that speech (criticism of a professor) could not be regulated on-campus, it clearly could not be regulated off-campus. But it’s not the same sort of speech, so we’ll have to wait to see how the lower court handles this one.
Even if qualified immunity ends up letting the district escape the lawsuit, the contours of off-campus speech regulation in the Tenth Circuit are much more clearly established. If it won’t stop school administrators from overstepping their bounds, it will at least make them easier to sue.
Filed Under: 10th circuit, 1st amendment, free speech, jokes, off campus speech